Green v. Windsor Park Asset Hold Trust ( 2021 )

Case: 20-11226 Document: 00515905435 Page: 1 Date Filed: 06/18/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-11226 June 18, 2021
Summary Calendar Lyle W. Cayce
Clerk
Julie A. Green,
Plaintiff—Appellant,
versus
Windsor Park Asset Holding Trust; RoundPoint
Mortgage Servicing Corporation,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CV-875
Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Julie Green appeals the district court’s grant of summary judgment to
Windsor Park Asset Holding Trust and RoundPoint Mortgage Servicing
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-11226 Document: 00515905435 Page: 2 Date Filed: 06/18/2021
No. 20-11226
Corporation (collectively, “Defendants”) and consequent dismissal of all of
Green’s claims with prejudice. We AFFIRM.
Background
Defendants attempted to foreclose on Green’s house by sending a
notice of foreclosure to both her last known mailing address and her house
address. Green’s last known mailing address was P.O. Box 2162, Hurst,
Texas 76053 (the “Hurst address”). Green’s house address, as listed on the
loan and on the deed of trust on her house, was 613 Blue Ridge, Fort Worth,
Texas 76179 (the “Fort Worth address”). Despite stating in her complaint
that her house address was the Fort Worth address, Green later contended
that her house address actually was 613 Blue Ridge Trail, Saginaw, Texas
76179 (the “Saginaw address”).1
After Defendants sent the notice of foreclosure to the Hurst and Fort
Worth addresses, Green submitted a completed borrower assistance
application for her house in an attempt to postpone the foreclosure.
Consequently, RoundPoint notified Green at her Hurst address that,
although it would make every effort to expedite review of her application, it
could not guarantee postponement of the foreclosure sale. A few days before
the date of the foreclosure sale, RoundPoint informed Green at her Hurst
address that she did not qualify for borrower assistance.
Green then sought a temporary restraining order and injunction
against Defendants to prohibit the scheduled foreclosure in state court. She
alleged that Defendants failed to strictly comply with the timing requirement
1
We note that we use these terms—the “Saginaw address” and the “Fort Worth
address”—only for purposes of discussion. Green points to nothing that proves that these
addresses represent two different houses rather than the same house with two different
addresses.
2
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for foreclosure and brought, among other claims, a breach-of-contract claim.
The state court entered a temporary restraining order, enjoining the
foreclosure.
Defendants then timely removed the case to federal court and moved
for summary judgment. In response, Green asserted for the first time that
Defendants breached their obligations in the deed of trust because the
foreclosure notice was not sent to her Saginaw address, and she thereby never
received the notice at that address. The district court concluded that the
summary judgment evidence belied Green’s argument, as the loan and deed
of trust both listed the Fort Worth address as the house’s address. It
therefore granted summary judgment to Defendants, and dismissed Green’s
claims with prejudice. Green timely appealed.
Discussion
The sole issue on appeal is whether Defendants’ failure to send the
foreclosure notice to the Saginaw address establishes a genuine material fact
issue as to Green’s breach-of-contract claim.2 We review the district court’s
grant of summary judgment de novo and “view all facts and evidence in the
light most favorable to the non-moving party,” Ferraro v. Liberty Mut. Fire
Ins. Co., 796 F.3d 529, 531 (5th Cir. 2015), to determine whether the district
court properly concluded that “there is no genuine dispute of material fact,”
FED. R. CIV. P. 56(a). “We may affirm for reasons other than those relied
upon by the district court.” LLEH, Inc. v. Wichita Cnty., 289 F.3d 358, 364
2
Green does not raise any arguments with respect to her other claims that were
dismissed with prejudice. Accordingly, we do not address them. See Cavallini v. State
Farm Mut. Auto Ins. Co., 44 F.3d 256, 260 n.9 (5th Cir. 1995) (noting that “the failure to
provide any legal or factual analysis of an issue results in waiver of that issue”).
3
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(5th Cir. 2002) (internal alterations and quotation omitted). We affirm for
three reasons.
First, Green’s breach-of-contract claim in her complaint alleged that
Defendants violated conditions in the deed of trust, but she never explained
which part of the deed was violated. It was only in response to Defendants’
summary judgment motion that Green identified the deed’s notice
requirement as the specific violation. Her failure to specify her breach-of-
contract claim in her complaint warrants dismissal of that claim. Sims v. City
of Madisonville, 894 F.3d 632, 643 (5th Cir. 2018) (per curiam) (affirming a
district court’s summary judgment dismissing a plaintiff’s vague
constitutional claim that was only specified in response to the defendant’s
motion for summary judgment); see also De Franceschi v. BAC Home Loans
Servicing, L.P., 477 F. App’x 200, 204 (5th Cir. 2012) (per curiam) (affirming
a district court’s dismissal of the plaintiffs’ breach-of-contract claim because
their complaint did not allege the breach with “any particularity” until their
motion opposing summary judgment).
Second, even if Green properly raised a breach-of-contract claim, it
fails on the merits. The relevant law provides that notice of foreclosure must
be mailed to the borrower’s “last known address.” Tex. Prop. Code
Ann. § 51.002(e). The “last known address” for a “debt secured by the
debtor’s residence” is the address for that residence unless the debtor
provides the lender “a written change of address.” Id. § 51.0001(2)(A). As
the district court acknowledged, both the loan and the deed of trust list
Green’s residence as the Fort Worth address. The only reference to Saginaw
in these documents is in the legal description of the property, which states
that Green’s home is “located in . . . Lot 14, . . . an addition to the city of
Saginaw.” Further, Green never provided Defendants with a written change
4
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of address. Accordingly, there is no genuine material fact dispute regarding
Green’s breach-of-contract claim.3
Lastly, even if Defendants breached their notice obligations, summary
judgment is proper because Green did not raise a genuine material fact issue
regarding damages resulting from the breach. See Caprock Inv. Corp. v.
Montgomery, 321 S.W.3d 91, 99 (Tex. App.—Eastland 2010, pet. denied)
(noting that a breach-of-contract claim requires establishing damages).
Green prevailed in obtaining a temporary restraining order on the foreclosure
in state court, and no foreclosure occurred. Although Green now seeks
attorney’s fees, those are not damages. In re Nalle Plastics Fam. Ltd. P’ship,
406 S.W.3d 168, 172–73 (Tex. 2013); see also Cross v. Bank of N.Y. Mellon as
Tr. CWALT 2004-30B, 790 F. App’x 647, 648 (5th Cir. 2020) (per curiam)
(affirming a dismissal of a breach-of-contract claim because the plaintiff had
not alleged any damages since no foreclosure had occurred). Consequently,
Green fails to establish a genuine material fact dispute regarding her breach-
of-contract claim.
AFFIRMED.
3
In any event, Green implicitly acknowledges that she receives mail at her Hurst
address—her last known mailing address—by arguing only that she did not receive
foreclosure notices at the Fort Worth address. If she had not received the notices at either
address, presumably, she would have alleged as much in her complaint. It therefore stands
to reason that she received the foreclosure notices at her Hurst address; this implicit
admission defeats her breach-of-contract claim. See Choe v. Bank of Am., N.A., 605 F.
App’x 316, 322 (5th Cir. 2015) (per curiam) (holding that “implicit admission of actual
notice of the foreclosure precludes a . . . claim founded on a violation of § 51.002”).
5